Florida Legal Topics

Daytona Beach Legal News - Premises Liability

The Law Office of Paul Bernardini

Personal Injury at Outdoor Parties

Happy New Year from Paul Bernardini. Enjoy the holiday season. But, be careful out there.
While you are enjoying the parties don't over imbibe. And with lots of other party-goers it's easy to miss seeing a hazard that causes you to slip and fall. It could be a drink spilled on the sidewalk or a soda can that didn't get picked up promptly.

Owners of public sidewalks and roadways have a legal obligation to maintain these areas in a reasonable safe condition. The owners have a duty to routinely and responsibly maintain these areas in order to prevent danger to public users of the premises. With lots of crowds, they may not respond as quickly when notified of a hazard on the sidewalk or road. But, if your injured because of their lack of attention, they may be responsible.

If you, or a loved one, are injured in a slip and fall accident on a public sidewalk or roadway, call Attorney Paul Bernardini. He has been representing personal injury cases in Daytona Beach for over 30 years.

Premises Liability Law

Premises liability law deals with injuries suffered on the property of an owner. Here, the owner implies a homeowner, small-business owner, or property manager of large commercial properties, such as shopping malls, gyms, restaurants, etc. Any time someone is injured on one of these premises, whether rented, leased, or owned by the occupant, the possessing party is most likely liable. However, there are circumstances where the visitor may be liable. Every case is different.

There are several levels of care depending on what kind of visitor is on the property. The kind of guest will determine the level of care the owner owes the visitor. The visitors fall into these three basic categories: Business invitees, Licensees, and Trespassers.

Business Invitees are those that enter an establishment for business reasons, such as to shop, eat, or conduct other business. Property owners owe this type of visitor the highest level of care. Repairmen and other workers who are invited into a home or business to do work usually fit into this category. Property owners have a continual duty to inspect the premises for dangerous conditions, and keep it safe at all times.

Licensees, or social guests, enter the premises for their own purposes, such as friends and family members attending a party or celebration, or to have dinner, or just visit, for example. This category also includes guests who just stop by. Owners have a duty to maintain their property in a “reasonably safe manner” and repair any unsafe conditions. At the very least, they have an obligation to warn of any known dangers.

Trespassers obviously have not been invited onto or into the property, but the owner still has a limited duty to warn them of any known dangers that could inflict intentional or reckless injury. “I have a gun and will shoot” would be a typical warning.

There are many more details pertaining to premises liability law and cases, and we can only touch upon them here. The best defense is to take preventative measures and keep your property danger-free; but if you find yourself on either side of one of these cases, please call me at 386-258-3453 at your earliest opportunity. The consultation is always free.

2015 Florida Residential Swimming Pool Safety Act

A swimming pool is, by its nature, a temptation – an “attractive nuisance” – for children.  Warm temperatures, long summer days, and unprotected pools act like a magnet to unsupervised kids. Even when children are supervised, it doesn’t take long for a child to drown silently while a back is turned or a message texted.

In Florida, drowning is the leading cause of death in children under 5, and brain disability is the result of nearly four times as many near-drowning incidents. The majority of these drownings happen in a residential swimming pool when there is no supervision, and no barrier between the child and the pool. The consequences are devastating to everyone involved. It is the property’s owner responsibility to keep his or her pool secure from and for children.

As of the 2015 passing of The Preston de Ibern/McKenzie Merriam Residential Swimming Pool Safety Act, all new pools must pass a final inspection that includes “…at least one of four requirements relating to pool safety features:
    (a) The pool must be isolated from access to a home by an enclosure that meets the pool barrier requirements of s. 515.29;
    (b) The pool must be equipped with an approved safety pool cover;
    (c) All doors and windows providing direct access from the home to the pool must be equipped with an exit alarm that has a minimum sound pressure rating of 85 dB A at 10 feet; or
    (d) All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor.”
Even if you have an older pool, you should seriously consider equipping it and your property with one of these safety features, and familiarize yourself with this new statute, Premises Law, and the Attractive Nuisance Doctrine. Pool owners have a duty to protect young children from the dangers of drowning and injury.

If a child is hurt in your pool, you will likely be sued. If you have any questions about a pool-related lawsuit you are involved in, please call me at 386-258-3453 right away.

No matter which side of the fence you find yourself on, we can help. The consultation is free.

Slip/Trip and Fall Injuries and Liability (Premises Law)

It is often difficult to prove who is at fault in a Slip/Trip and Fall injury. The property owner/renter or employee (hereinafter the “owner”) will not always be responsible for a situation that a reasonable person would and could have avoided. But if the owner caused and/or knew about the situation, he must fix it – or at the very least, post a visible sign of caution, or be liable for any consequences that may occur.

Many of these cases are decided by the perception of reasonableness. In order for a slip/trip and fall suit to be successful, the following may have to be proved by the plaintiff:

1. The owner created the situation;
2. The owner knew about the unsafe condition and failed to correct it in a reasonable, timely manner;
3. The owner reasonably should have known about the condition, foreseen the danger, and corrected it before your accident;
4. The owner did not have in place safety measures to reasonably check for hazards.

But could the owner have avoided the condition? Was the owner guilty of negligence and have a record of such negligence? Did he know about it and have sufficient time to rectify the situation? Did he do all he could to prevent injury, such as posting a sign until the danger was either fixed or removed? Was the lighting adequate and working, or was the area poorly lighted?

The injured party must prove negligence on the part of the owner. The injured party will also have to anticipate that the defense will be claiming the injury is due to some carelessness on the part of the plaintiff:

1. Did being on a cell phone or otherwise being distracted prevent him from noticing the hazard, when another person who was paying attention noticed the hazard?
2. Did the plaintiff have permission to be on the premises?
3. Did he ignore the perfectly adequate signage warning of the hazard?

Slip/trip and fall law, also known as premises law, can be complicated. There are many factors to consider, evidence to be gathered, and questions to be answered. You need a qualified personal injury attorney – and as soon as possible – if you believe you have been injured due to the negligence of the owner.

Please call me, Paul Bernardini, at 386-258-3453, and come in for a free consultation, before it’s too late. Your injuries must be addressed and your situation evaluated to determine the best plan of action. Don’t wait!

Premises Liability Law

Premises liability law deals with injuries suffered on the property of an owner. Here, the owner implies a homeowner, small-business owner, or property manager of large commercial properties, such as shopping malls, gyms, restaurants, etc. Any time someone is injured on one of these premises, whether rented, leased, or owned by the occupant, the possessing party is most likely liable. However, there are circumstances where the visitor may be liable. Every case is different.

There are several levels of care depending on what kind of visitor is on the property. The kind of guest will determine the level of care the owner owes the visitor. The visitors fall into these three basic categories:  Business invitees, Licensees, and Trespassers.

Business Invitees are those that enter an establishment for business reasons, such as to shop, eat, or conduct other business. Property owners owe this type of visitor the highest level of care. Repairmen and other workers who are invited into a home or business to do work usually fit into this category. Property owners have a continual duty to inspect the premises for dangerous conditions, and keep it safe at all times.

Licensees, or social guests, enter the premises for their own purposes, such as friends and family members attending a party or celebration, or to have dinner, or just visit, for example. This category also includes guests who just stop by. Owners have a duty to maintain their property in a “reasonably safe manner” and repair any unsafe conditions. At the very least, they have an obligation to warn of any known dangers.

Trespassers have not been invited onto or into the property, but the owner still has a limited duty to warn them of any known dangers that could inflict intentional or reckless injury. “I have a gun and will shoot” would be a typical warning.

There are many more details pertaining to premises liability law and cases, and we can only touch upon them here. The best defense is to take preventative measures and keep your property danger-free; but if you find yourself on either side of one of these cases, please call me at 386-258-3453 at your earliest opportunity. The consultation is always free.

Nursing Home Negligence: When Can You Sue?

A nursing home, convalescent home, rest home, or elder care facility can be held legally responsible when an act of negligence, neglect, or abuse on the premises ends up causing harm to a patient or resident.

There are several factors that lead to nursing home negligence, including: unsafe conditions; negligent hiring or supervision; failure to maintain adequate health and safety policies; and failure to provide adequate medical equipment.

Once in a home, there are facility equipment hazards, including poorly fitted canes, walking sticks, and wheelchairs; loose carpeting; awkward bed heights and railings; and environmental hazards, such as wet floors, clutter, and dim lighting.

Upon intake, each patient is entitled to be properly assessed for health and need, and given an individualized care plan to protect the continued health and safety of the resident. Failure to create and maintain such a plan is considered negligence on the part of the facility, and the basis for a lawsuit.

Contributing to falls in the elderly, which are one of the main reasons that result in a nursing home stay, are chronic health conditions, loss of strength and balance, dementia, medications that cause dizziness, and impaired vision. These all need to be taken into consideration both before and after admittance.

If you suspect that nursing home negligence on the part of the care facility is responsible for the fall or injury of your loved one, call us immediately at Paul Bernardini Law, at 386-258-3453. We’ll take care to see that the rights of your loved ones are defended and preserved. The consultation is always free.

Premises Liability Law for an Apartment Complex

A very good case discussing the premises liability law and claim against the owner of an apartment complex for negligent security is discussed by the Supreme Court of Florida in Sanders v ERP Operating Limited Partnership, 40 FLW S85 (February 12, 2015).

Evidence - Premises Liability

Bar fights prior incidents of violence, failure to maintain adequate security to protect patrons:

The admissibility of evidence of prior violence in a tavern or any business establishment was discussed in Bellevue v. Frenchy’s South Beach Café, Inc., 38 Fla. L. Weekly D2537 (2nd DCA, December 4, 2013). The Second District reviewed cases from the Supreme Court of Florida and other districts to the effect that these prior incidents were admissible whether or not those incidents involved damage to persons or property.  The Court held that evidence of prior incidents, similar or not, was admissible saying, at 38 Fla. L. Weekly D2538:

“While evidence of prior similar incidents [is] helpful, a rule limiting evidence of foreseeability to prior similar incidents deprives the jury of its role in determining the question of foreseeability.    Although evidence of a violent crime against a person may be necessary initially to establish the issue of foreseeability, evidence of lesser crimes against both persons and property is also relevant and admissible to determining that issue.”